‘You can’t have your cake and eat it too,’ the special master appointed to review the documents told Trump’s team on Tuesday.
‘You can’t have your cake and eat it too,’ the special master appointed to review the documents told Trump’s team on Tuesday.
I n a Brooklyn courtroom Tuesday, the walls seemed to be closing in on Donald Trump. Senior federal judge Raymond Dearie, the special master recommended by Trump’s lawyers, expressed skepticism of the former president’s intimation that he might have declassified documents seized from his Mar-a-Lago estate.
The documents are indisputably marked classified. Absent evidence to the contrary, that means that they are classified, and were classified when the FBI found them on August 8. If Trump wants Judge Dearie to question the government’s claim that the documents are classified, he will likely have to produce proof that he declassified them.
“My view is, you can’t have your cake and eat it too,” Dearie told Trump lawyers James Trusty and Christopher Kise. He did not make a definitive finding — a final recommendation that, as special master, he would pass on to Aileen Cannon, the Florida federal judge who appointed him, and who has been more willing to indulge Trump’s declassification gambit. He did, however, explain that unless Trump’s lawyers proffer affirmative evidence that Trump declassified the documents before leaving office, he expects to conclude that the documents are, in fact, classified.
Dearie has been appointed to conduct a privilege review of the approximately 11,000 documents the FBI seized pursuant to a search warrant. The warrant was issued by Florida federal magistrate judge Bruce Reinhart, who found probable cause to believe that Trump had violated the Espionage Act by mishandling national-defense secrets, in addition to illegally removing government records and obstructing an investigation.
The government argues that 100 of the seized documents are classified, and that Trump has no conceivable basis to claim executive privilege with respect to them. Trump’s attorneys have tried to cast doubt on these propositions, describing the documents as “purportedly” classified and maintaining that the court should not rely on the government’s “unilateral” classification claim.
As I discussed in Tuesday’s column, Trump’s lawyers have misconstrued the burden of proof. The case currently before the court is not a criminal prosecution, in which the government would have to prove beyond a reasonable doubt that the documents contained national-defense secrets; it is a civil case, voluntarily brought by Trump, the plaintiff. If he wants to claim the documents have been declassified, he must produce evidence to that effect. Moreover, the civil burden of proof is met by satisfying a preponderance-of-the-evidence standard, rather than a beyond-a-reasonable-doubt standard; the government — the defendant in this case — has proffered that the documents are marked classified, which Trump does not dispute. So at the moment, that proof preponderates.
Trump contends that, because he may be indicted by the government, it is unfair at this point to expect him to produce evidence to back up his suggestion that he may have declassified the documents. By doing so, his lawyers argue, he would in effect be tipping off the government about his defense strategy, and any positive evidence he offered could be used against him in a subsequent criminal prosecution.
But litigation is not a game. If a criminal suspect wants to keep his cards close to the vest to avoid incriminating himself, then he should rely on his Fifth Amendment rights and remain silent. If, instead, the suspect files a civil lawsuit, he is stuck with the onus of proving his claims; if he makes public claims — as Trump has, insisting that he declassified all the documents — then those public assertions can be used against him in the criminal proceedings. And clearly, by making extravagant public claims to have declassified documents, Trump has done his lawyers no favor in their struggle to explain to an experienced federal judge why they should be permitted to keep their defense strategy under wraps.
Thus, early indications are that the government would prevail before Dearie if the matter remained in his hands. That is, he’d be likely to make a prompt recommendation that Cannon should rule that the documents are classified and not privileged, and therefore that the government should be permitted to continue using them in the criminal investigation (which Cannon has essentially prohibited, pending his review). Yet, whether Dearie will actually get to weigh in on the classified documents is in doubt, because at nearly the same time as Trump’s lawyers were appearing before Dearie in Brooklyn, a brief they’d written was being filed in the Eleventh Circuit Court of Appeals in Florida, responding to the Justice Department’s limited appeal of Judge Cannon’s special-master ruling.
That appeal challenges the inclusion of the 100 classified documents in Dearie’s privilege review. As we’ve previously related, although the Justice Department argues that Judge Cannon’s rulings are wrong in their entirety, prosecutors have asked the Eleventh Circuit to intervene only insofar as she asked Dearie to scrutinize the classified documents and barred the government from using those documents in the ongoing criminal investigation until Dearie’s review is complete.
In their submission to the appeals court on Tuesday, the Trump lawyers rehashed the responsive arguments they made when the Justice Department asked Cannon to reconsider her decisions regarding the classified documents. Echoing the arguments that have left Judge Dearie unimpressed, the Trump team insisted that it is the government’s burden to prove that the documents remain classified. Again, Trump’s lawyers pointed out that presidents have plenary power to declassify documents, but that is not in dispute. The question is whether Trump did declassify them — and it’s a question his lawyers have so far declined to answer.
Beyond that, Trump’s Eleventh Circuit submission repeats the similarly confused intimation — again, with no evidence — that he may have categorized the classified documents as “personal” property under the Presidential Records Act (PRA). Put aside the fact that agency intelligence reports are not personal presidential records (and note that some of the documents at issue were so highly classified that seizing agents from the DOJ’s National Security Division lacked sufficient clearances to view them). Put aside, too, that Trump did not comply with the PRA, so he is ill-suited to make claims based on the statute. Contemporaneous with his suggestion that the classified documents may be personal property, Trump is also saying they are covered by executive privilege — and since the privilege relates to communications with presidential aides regarding executive business, it is hard to fathom how the documents could simultaneously be personal and privileged.
In any event, Trump also reiterates a claim intended to make the government squirm: The Justice Department’s objection to revealing the documents to Judge Dearie. But that objection is not directed at Dearie personally — nor has Dearie, whose appointment the government agreed to, interpreted it that way. Rather, because access to highly classified documents is strictly limited to those with a need to know, the government objects to even limited disclosure of the documents at issue in the absence of a showing that it is necessary — and Trump hasn’t shown that he’s entitled to a privilege review of classified documents by a special master.
Further, the government is more adamant in its objection to revealing the documents to Trump’s lawyers, who lack the clearance to see them. Trusty, a former Justice Department lawyer, has a clearance from another case, but it is evidently not high enough for access to at least some of the documents. Other Trump lawyers on the case may not have security clearances at all.
As he did while president, Trump continues to conflate his interests with those of the American people, arguing that because there is public interest in the case, the public would somehow be harmed if he is denied a special-master review of classified documents. Whatever the merits of this dubious theory, it misses the mark to the extent that it attempts to rebut the government’s contentions that the public interest is being compromised by interference in its investigation. The Justice Department’s point is that there is obvious public interest in getting to the bottom of how national-defense secrets were mishandled and whether some are still missing.
By requiring Trump’s lawyers to respond by midday yesterday to the appellate submission the Justice Department made only the Friday before, the Eleventh Circuit signaled that it intends to move expeditiously. So, however, has Judge Dearie signaled that he intends to move expeditiously. And given that he seems, at least at first blush, to be sympathetic to the Justice Department’s position, the potential downside for the government is that it might well get uninhibited use of the classified documents faster if it dropped its appeal and just let Dearie fulfill his mandate.
That, however, is minor compared to Trump’s problem. He is going to have to either (a) abandon his claim that the documents may have been declassified (which would both be humiliating and make Judge Cannon look foolish, when she still has to rule on his claims after the special master is done); or (b) provide an affidavit or some other evidence proving that he declassified the documents — at the risk that the government will use that evidence against him in future criminal proceedings.
A final note: Interestingly, Trump lawyer M. Evan Corcoran did not sign Trump’s submission to the Eleventh Circuit. As we’ve observed, it is hard to imagine how Corcoran could continue participating as counsel in the case. He was personally involved in the Trump team’s apparently false representation to the grand jury and the Justice Department that the 38 classified documents he and another Trump lawyer (Christina Bobb) surrendered on June 3 were the only documents marked classified that remained at Mar-a-Lago. At a minimum, he appears to be an important witness in the case, and he may well be a subject of the investigation. Either way, his potential conflict of interest with former president Trump is patent — and the absence of his name on the Eleventh Circuit filing suggests that the Trump team may see it as insuperable.